PEOPLE v. PEREZ

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Manolito PEREZ, appellant.

Decided: May 27, 2008

ROBERT A. LIFSON, J.P., DAVID S. RITTER, MARK C. DILLON, and JOHN M. LEVENTHAL, JJ. Salvatore C. Adamo, New York, N.Y., for appellant. Francis D. Phillips II, District Attorney, Goshen, N.Y. (Luke E. Bovill and Andrew R. Kass of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.), rendered July 17, 2007, convicting him of attempted criminal possession of a forged instrument in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's contention that his plea was coerced is unpreserved for appellate review because he did not move to vacate his plea or otherwise raise this issue before the County Court (see People v. Clarke, 93 N.Y.2d 904, 905, 690 N.Y.S.2d 501, 712 N.E.2d 668;  People v. Scoca, 38 A.D.3d 801, 832 N.Y.S.2d 604;  People v. Lopez, 34 A.D.3d 599, 824 N.Y.S.2d 173;  People v. Whitaker, 27 A.D.3d 499, 810 N.Y.S.2d 343).   In any event, the defendant acknowledged under oath during the plea proceeding that no one had threatened, coerced, or forced him into pleading guilty, which belies his present unelaborated claim of coercion (see People v. Beasley, 50 A.D.3d 697, 853 N.Y.S.2d 917 [2d Dept.2008];  People v. Gedin, 46 A.D.3d 701, 847 N.Y.S.2d 231;  People v. Lopez, 34 A.D.3d at 599, 824 N.Y.S.2d 173;  People v. Robertson, 2 A.D.3d 756, 768 N.Y.S.2d 645).

 The defendant's valid waiver of his right to appeal precludes review of his claim that he was denied the effective assistance of counsel, except to the extent that the alleged ineffective assistance affected the voluntariness of his plea (see People v. Morrow, 48 A.D.3d 704, 852 N.Y.S.2d 327;  People v. Gedin, 46 A.D.3d 701, 847 N.Y.S.2d 231;  People v. Dixon, 41 A.D.3d 861, 862, 841 N.Y.S.2d 314).   Although the defendant's allegation that counsel was ineffective because he coerced him into pleading guilty relates to the voluntariness of his plea, it is unsupported by the record which demonstrates that the plea was knowingly, voluntarily, and intelligently made (see People v. Gedin, 46 A.D.3d at 702, 847 N.Y.S.2d 231).

 The defendant's waiver of his right to appeal precludes review of his challenge to the sentence as excessive (see People v. Lopez, 6 N.Y.3d 248, 264, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Morrow, 48 A.D.3d at 704, 852 N.Y.S.2d 327;  People v. Luster, 45 A.D.3d 866, 847 N.Y.S.2d 206).

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